Fighting for Workers in the Courts
For decades in New Mexico, farm and ranch workers were not covered under the state’s workers’ compensation system. As a result, workers who suffered countless injuries associated with milking cows, herding horses, and other farm and ranch tasks were not eligible to receive any benefits. Instead, they were forced to cover medical, rehabilitative and other expenses – not to mention lost wages while they were incapacitated – out of their own pockets, from family savings and other means of compensation.
Gail Evans, legal director for the New Mexico Center on Law and Poverty, a Public Welfare Foundation grantee, and her colleagues tried twice, unsuccessfully, to persuade state legislators to change the law. They were also unable to get the changes through a special commission set up to examine the issue.
In 2009, the Center – together with the National Center for Law and Economic Justice and the Sargent Shriver National Center on Poverty Law, which served as co-counsel – filed a lawsuit challenging the exclusion of ranch and farm workers from the state’s workers’ compensation program as a violation of the state’s constitution. They won the case, but the agricultural industry and the state Workers’ Compensation Administration (WCA) resisted compliance and appealed to the New Mexico Supreme Court, which ruled against them earlier this year. Finally, the state’s highest court has said that 15,000 agricultural workers should be covered under the state’s workers’ compensation system and that the industry had to secure insurance to cover those who become injured.
The case is a prime example of how advocates use litigation to change laws that shut out or do not favor low-wage workers. In New Mexico, judges were more convinced by facts and anti-discrimination principles than legislators.
As Evans recalled, “All along, the industry has taken the position that including agricultural workers is too expensive and too difficult to administer. And so the beauty of getting to court was that the arguments that they [the industry] had been making really weren’t based in fact…In court, we were actually able to prove that through experts and a lot of research on agricultural economics – how the industry works, what their profits are, and how they could actually afford this.
“We have the largest dairies and the largest average herd size in the country. So, these are big, industrial operations, not small ma and pa operations with cows wandering around on a field. These are cows standing in miles and miles of concrete-like sheds being milked. And that’s where a lot of our clients are hurt. They are milking 500 to 1,000 cows a day and it’s extremely dangerous work. These dairies bring in lots of money and these are the operations that are saying they can’t afford to buy [workers’ compensation] coverage. Not true.”
In fact, every court that considered the case took into account that, by requiring a small proportion – 7.5 percent – of mega-farms to provide coverage, 90 percent of the state’s agricultural workers would be able to receive workers’ comp.
According to Evans, “The court[s] told the agriculture industry, ‘You haven’t shown us any rational reason why agriculture is different from any other business. Just because you guys want to save some money. Well, that’s not a good enough reason to discriminate against this group of workers.’”
The New Mexico court fight underscores the fact that, like organizing and advocacy, litigation requires groups engaging in this process – as well as their funders – to be able to sustain the fight over time, despite ebbs and flows of momentum, to ensure that changes in the law ultimately improve people’s lives.
And, in the struggle to advance workers’ rights and improve lives, advocates also use litigation to beef up enforcement of existing laws.
As Sally Dworak-Fisher, a lead attorney with Foundation grantee Public Justice Center (PJC), based in Baltimore, MD, put it, “I think the litigation piece comes in because enforcement is really critical. And, unfortunately, laws on the books are only as strong as their enforcement mechanism. We’ve seen, time and time again, laws that are passed that look good on paper, but if employers don’t know about them or there’s no way to enforce them, they are essentially ignored…
“At PJC, we really take this approach that we have to set the tone and say to employers, ‘You need to comply with this law or be held accountable.’ So, that’s in a nutshell how we use litigation.”
The need to sharpen enforcement tools was a key reason why PJC advocated in 2013 for a new law in Maryland called the Lien for Unpaid Wages Act. It created a pre-judgment wage lien that allows workers to put a temporary hold on employer property during a wage theft case. The wage lien is aimed not only at speeding up cases, but also preventing some less-than-scrupulous employers from hiding assets in advance of a court order for back pay and damages.
So far, the law has made a difference for dozens of workers, with PJC securing liens on more than $200,000 worth of property and recovering more than $20,000 in unpaid wages. The law is expected to have an even broader impact as more workers overcome their hesitation to confront their employers and as enforcement mechanisms are refined even further.
Among those who have taken advantage of the new law is Heriberto Lopez, who was required to sign a contract stating that he would not receive overtime – no matter how many hours he worked – when he was hired to cast concrete stair molds for a building supply company. Indeed, Lopez was only paid at his regular hourly rate when he worked more than 40 hours a week.
After he contacted PJC in 2015 and was assured that the company was violating state and federal law, a PJC attorney sent his employers a letter demanding payment of the overtime wages plus penalties. The letter also noted that Lopez intended to establish a lien for unpaid wages on the company’s property. The threat of legal action and the lien brought the company to the table for settlement talks and, ultimately, Lopez received a check for his overtime wages and penalties paid by the employer for violating the law.
Despite such successes, Dworak-Fisher conceded that there are far more aggrieved and cheated workers than there are attorneys who are able and willing to take their cases.
“[W]age theft occurs so frequently…[that] one of our challenges is that we don’t have enough resources to address all the viable claims that are out there,” she said. Many of the claims “are not worth a lot of money” and private attorneys do not think the reward of winning individual wage theft cases justifies the time and effort required to bring the cases to court. In addition, the administrative staff at the state Department of Labor is overburdened, and lacks resources needed to respond effectively to every viable complaint.
Illinois has faced similar issues and achieved good results for workers. With support from a coalition of organizations that are now part of grantee Raise the Floor Alliance, amendments in 2010 to the state’s Wage Collection and Payment Act gave jurisdiction to the Illinois Department of Labor (IDOL) to hear wage theft claims through its administrative process and gave it authority to issue binding judgments. Consequently, hundreds of workers have been able to resolve cases of unpaid wages.
Grantees Raise the Floor Alliance and Working Hands Legal Clinic have also monitored the administrative process and suggested changes to make sure workers can use the process effectively, especially those not represented by counsel. Since 2013, these grantees have helped nearly 60 workers resolve wage claims, including 44 in a class action that caused the employer to close its doors and file for bankruptcy.
In addition to better procedures for individual cases, some groups have used litigation strategically to transform industries in which wage theft and other violations are widespread. Restaurant Opportunities Centers United (ROC United), a Foundation grantee, has brought many lawsuits against employers and restaurant owners who violated wage and hour laws and it has insisted on settlements that have gone beyond just restoring back pay. In more than 20 such campaigns that ROC United has won, more than 3,000 workers have received pay raises and promotions as well as other benefits such as paid sick days, vacation time, holidays, job security, internal grievance procedures, new human resources departments, and new promotion policies.
Grantee Los Angeles Alliance for a New Economy (LAANE) has also worked to organize port truck drivers, who are regularly misclassified as independent contractors so that employers can avoid paying them overtime and benefits. Drivers have been actively using the courts and state agencies to pursue misclassification cases, and they have been winning judgments against employers. The approach is paying off: in just a couple of years, four port trucking companies have recognized their drivers as employees, and two have signed collective bargaining agreements.
These groups actively share their tactics and lessons learned with other groups across the country that also use litigation strategies to advance workers’ rights. For example, many of them are involved in the Low Wage Workers’ Legal Network, an informal collaborative that helped develop the Maryland wage lien and successful impact litigation focused on migrant workers, among other things.
Evans certainly thinks that lessons learned from various methods can be used to help workers. The approach taken in New Mexico – relying on the state’s constitution to argue that agricultural workers’ civil rights were being violated – is now being examined by worker advocates in other states, including the American Civil Liberties Union in New York. Agricultural workers are excluded from a lot of labor laws, particularly wage and hour protections. Evans and other lawyer-advocates are gearing up for a new round of lawsuits.
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